The State is a party to the International Covenant on Civil and Political Rights

1. The Working Group on Arbitrary Detention was established by resolution 1991/42
of the Commission on Human Rights. The mandate of the Working Group was clarified
and extended by resolution 1997/50. Acting in accordance with its methods of
work, the Working Group forwarded to the Government the above-mentioned communication.

2. The Working Group conveys its appreciation to the Government for having forwarded
the requisite information in good time.

3. The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(i) When it manifestly cannot be justified on any legal basis (such as continued
detention after the sentence has been fully served or despite an applicable
amnesty
act) (category I);
(ii) When the deprivation of liberty is the result of a judgement or sentence
for the exercise of the rights and freedoms proclaimed in articles 7, 13, 14,
18, 19, 20 and 21 of the Universal Declaration of Human Rights and also, in
respect of States parties, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of
the International Covenant on Civil and Political Rights (category II);
(iii) When the complete or partial non-observance of the relevant international
standards set forth in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned relating
to the right to a fair trial is of such gravity as to confer on the deprivation
of liberty, of
whatever kind, an arbitrary character (category III).

4. In the light of the allegations made, the Working Group welcomes the cooperation
of the Government. The Working Group transmitted the reply provided by the Government
to the source which did not comment on the Government’s reply. The Working
Group believes that it is in a position to render an opinion on the facts and
circumstances of the cases, in the context of the allegations made and the response
of the Government thereto.

5. According to the source, the five pilots mentioned above were arrested in
India in November 1995 and remained in custody at the prison of Calcutta, on
charges of having delivered weapons to India and engaging in anti-State activity.

6. Although the detained individuals argue that they were merely acting upon
the orders of superiors, they continue to face the death penalty. The source
submits that all five are subjected, in prison, to cruel and inhuman treatment,
and that they are detained under conditions that do not comply with the United
Nations Standard Minimum Rules for the Treatment of Prisoners.

7. According to the source, who relies on the statements of defence counsel
for the prisoners, the prisoners’ rights under article 14 of the International
Covenant on Civil and Political Rights have been violated. Thus, it is claimed
that they were not given adequate time and facilities to prepare their defence,
in violation of article 14, paragraph 3 (b), of the Covenant, and their right
to be provided with the assistance of an interpreter (art. 14, para. 3 (f))
was equally violated. Other procedural guarantees under article 14 are also
said to have been violated.

8. In its detailed reply, the Government refutes the allegations and provides
the following version of the facts of the case:
(a) On 17 December 1995, at around 23.00 hours, an aircraft dropped a very large
consignment of arms and ammunition in the area of Jhalda, in the district of
Purulia, West Bengal State. On hearing of the incident, the police took action
and recovered from the area AK-series rifles, pistols, empty magazines, ammunition,
hand grenades, anti-tank grenades, etc.;
(b) The Central Bureau of Investigation (CBI) immediately commenced an investigation
into the incident. Its inquiries revealed that a private AN-26 aircraft belonging
to “Carol Air Services”, which had flown from Karachi to Varanasi
and then onward to Calcutta, was responsible for dropping the consignment. The
aircraft had, in the meantime, left Indian territory for Thailand, instead of
its original destination of Yangon. It however re-entered Indian territory and
was intercepted by the Indian authorities. It was forced to make a landing at
Bombay International Airport on the morning of 22 December 1995. The aircraft
was seized by customs authorities and six foreign nationals on board the aircraft,
including five Latvian nationals and one British national, were arrested by
the police;
(c) Sufficient evidence has been discovered during the course of the investigation
which clearly indicates the complicity of the five Latvian crew members in conspiring
to air-drop arms and ammunition inside India. Investigation has proved beyond
any doubt that without the full knowledge and complicity of the crew members,
it would not have been possible for any person to air-drop the arms and ammunition
inside Indian territory. The claims of innocence on the part of the Latvian
crew members are therefore without any basis;
(d) The accused are receiving full legal assistance and there is constant liaison
and interaction between them and their lawyers. There is no basis for the allegation
that they do not have legal assistance;
(e) There has been no delay in the conduct of the investigation. A charge sheet
was laid against 13 persons, including the Latvian crew members, as early as
27 March 1996, i.e. within exactly three months of the arrest of the accused
persons. It may be mentioned that the accused, after submission of the charge
sheets by the CBI, applied to different courts for bail. They also approached
the Calcutta High Court as well as the Supreme Court of India. Because of these
applications pending in the higher courts, the trial could not start. The 4th
City Sessions Judge framed the charges against the accused persons on 6 June
1997, after hearing prolonged arguments by the lawyers appearing on behalf of
the accused. The accused then filed a petition before the High Court of Calcutta
in August 1997, challenging the decision of the Sessions Judge. The matter came
up in the High Court on many occasions and was finally disposed on 17 December
1997. The High Court upheld the charges framed by the 4th City Sessions Judge.
The Supreme Court and the High Court have further directed that a speedy trial
be conducted. However, due to filing of appeal petitions, revision petitions,
etc. in different higher courts on various successive occasions, the trial has
been further delayed;
(f) Qualified Russian interpreters have been available throughout the examination
of the Latvian crew members during CBI custody. An interpreter was also arranged
at the direction of the Judicial Court during court proceedings. The accused
have not so far raised any objections to the use of documents in English nor
made any request to the court for the translation of the documents into Russian.
If they had submitted such a request, the court would have immediately acceded
to the same. The allegation that they are not being provided the assistance
of Russian translators is therefore without foundation;
(g) The investigation of the case shows that it has international ramifications
and links to criminal activities in a number of places outside India. Inquiries
are therefore being conducted with the help of Interpol. The assistance of technical
experts specialized in civil aviation, forensic experts, ballistic experts,
fingerprint experts, etc. is also being utilized to ensure that the investigation
is conducted in a proper and efficient manner. Allegations that Indian experts
have an inadequate understanding of the technicalities of civil aviation and
that the Government is trying to save the real culprits at the cost of the accused
are baseless and without any foundation. In any case, these are matters for
the trial court to examine and decide upon.

9. The Government’s reply was transmitted to the source for comments on
31 August 1998. To date, no observations from the source have been received.

10. In its communication, the source makes a number of allegations pertaining
to ill-treatment of the five pilots. The alleged violations of the right to
a fair trial only concern the allegedly insufficient time accorded to the pilots
for the preparation of their defence, and the alleged absence of Russian interpreters.

11. The Working Group considers:
(a) That the first allegation is without basis, to the extent that the five
pilots have always benefited from legal assistance (including, as transpires
from the correspondence addressed to the Group, in the drafting of the present
communication) and have interposed numerous appeals at all levels of the judicial
system;
(b) That the allegation of lack of assistance of Russian interpreters is insufficiently
substantiated. Indeed, the five pilots had the assistance of interpreters at
the beginning of the inquiry, and subsequently did not object to the introduction
and use of English documents; furthermore, they were assisted by an interpreter
before the court.

12. As a result, the Group is in a position to render the following Opinion:
In the light of the procedural guarantees afforded to the five pilots, as explained
above by
the Government, and which have not been contested by the source, the Group declares
not arbitrary the detention of Aleksander Klishhin, Oleg Gaidash, Igor Moscvitin,
Igor Timmerman and Yevgeny Antimenko.

13. The Working Group wishes to recall that:
(a) On the one hand, the fact that a deprivation of liberty is declared not
arbitrary does not imply any pronouncement on the guilt of the individuals deprived
of their liberty; and
(b) On the other hand, given that the five pilots mentioned above may be subject
to a capital verdict, the United Nations General Assembly has invited Member
States to abolish capital punishment and, pending its abolition, to suspend
its application.

Adopted on 20 May 1999
E/CN.4/2000/4/Add.1

* Mr. Kapil Sibal did not participate in the deliberations on and the adoption
of this Opinion.